§ 13. CAN THEY ed, may convict the offenders in their refpective counties. Unless facts are ftated to make the contrary appear, the ACT BEfupreme courts always prefume in favour of the acts of in- YOND ferior jurisdictions 2. ANY juftice acting for any county at large, may act as fuch at any place within any city, town, or precinct, being a county of itself, and fituate within, furrounded by, or adjoining to, any such county at large. THEIR COUNTY? 33 Geo. III, AND by 33 Geo. III, c. 55, § 3, where distress cannot be Levying diftrefs, by found in the jurifdiction of justices granting warrants for that purpose, it is provided, that the fame may be levied in c. 55. any other county or place, upon fuch warrant being indorfed by a juftice of fuch other county or place. $14. CAN A JUS IN WUAT SELF? XIV. No maxim is more firmly established, than that a judge, or magiftrate, ought to be completely difinterested. TICE OF A juftice of peace, therefore, ought not to exercife his PEACE ACT powers, either as a member of the court of feffions, or out RELATES of the feffions, in matters where he himself is concerned. TO HIMAccordingly, the provost of the burgh of Rutherglen having fined and imprisoned an heritor for alleged removing of land-marks between him and other heritors, of whom the judge himself was one, the lords found that in that cafe he could not fit as judge, but fhould have declined himself, and that it was fufficient ground to make him liable for the damages and wrongous imprisonment. And the English court of king's bench went the farther length of "laying "the mayor of Hereford by the heels," for fitting in a cause where he himself was leffor of the plaintiff in ejectment, though he, by the charter, was fole judge of the court. K.. Morgan, H. 22. G. III, Cal. Caf. 156. Burns, tit. Justices, § 2. b9 Geo. III, c. 7; 28 Geo. III, c. 49.7. Burns, tit. Juftices, $2. c Fount. 27th July 1711; Leitch. Dictionary, voce Reparation. d 1 Salt. 396. Burns, tit. Juftice. $5. $14. CAN JUS TICES ACT OWN CAUSE? JUSTICES, therefore, ought rather to cause offenders to be carried before fome other justice, or get fome other justice to IN THEIR be prefent. But, in some cases, it may be justifiable for the juftice of peace to act in his own caufe; for example, if he fhall be aflaulted or (in the doing of his office especially) abused to his face, he may commit fuch offender until he fhall find fureties for the peace or good behaviour, as the cafe fhall require. But, obferves Dalton, if any other juftice were prefent, it were fitting to defire his aid b. 16 Geo. II, NEITHER can a juftice fit as a member of the feffions in any cause which concerns himself. This was disapproved of by the king's bench, in a cafe where a justice of peace was furveyor of the highways, and a matter which concerned his office coming in queftion at the feffions, he joined in making the order, and his name was put in the caption. Lord chief-justice Holt said, "it ought not to be; as if an action be brought by my lord chief-justice Trein the court of common pleas, it must be before Ed"ward Nevill and his affociates, and not before Thomas "Trevor," &c. It was quafhed, or dismissed d. vor BUT, by the 16th Geo. II, cap. 18, § 1, it is lawful c. 18, excep- for every justice of peace, within his jurisdiction, to execute ing paro- every thing appertaining to his office, fo far as the fame rechial taxes. lates to the laws concerning the poor, vagrants, highways, tion touch or other laws concerning parochial taxes, levies, or rates, notwithstanding he is chargeable with fuch taxes within any fuch parish or place affected by fuch his acts. No act already done by fuch justice shall be void, because himself is rated. a Dalt. cap. 173. b Dalton, c. 173. Bac. Abridge ment, vol. iii, p. 801. CH. 3. An. d 2 Salk. 607. Burns, tit. Juftices, § 5. CAN JUS But this act does not empower any juftice for any coun- §14. ty or riding at large, to act in the determination of any ap- TICES ACT peal to the quarter-feffions for any fuch county, from any IN THEIR order or thing relating to the parish or place where fuch juf- CAUSE? tice is fo charged. THE late ftatute, 39 Geo. III, c. 56, in favour of colliers, giving certain powers to juftices of peace, provides, that no coal-mafter, or leffee of coal, fhall act as a juftice of peace under this act; and, in like manner, in excife matters, the acts 15 Car. II, and 14 Geo. II, prohibit justices concerned in particular trades from acting as juftices, in any informations refpecting those trades. OWN JUSTICES "JUSTICES of peace," Mr. Forbes observes 2, "formerly $ 15. "were cenfurable by the privy-council of Scotland for any or THE "mifcarriage in their office; and now, in confequence of PEACE, "the Union, are answerable for their good behaviour to the NISHABLE. "privy-council of Britain." BESIDES, they act under the review of the fupreme judicatures of the country; and are liable, according to circumftances, either, criminally, before the court of justiciary, or, for pecuniary reparation, before the court of feflion. The plea that juftices of the peace cannot be called to account in the courts of feffion or justiciary, has been frequently stated, but uniformly repelled Þ. Justice, part ii, c. 1, § 30. Thus fir John Carnegie of Pittarrow, and John Arbuthnot of Fordoun, being profecuted, at the infance of Mr. John Blair, agent for the kirk, and of Sir James Stewart, her majefty's advocate, as art and part, of a violent intrufion into a church, had recourfe to this defence, among many others, that, on the oc cafion libelled, they had been acting WHEN PU $15, JUSTICES, WHEN PU NISHABLE. BUT juftices of peace not being professional men, nor deriving any perfonal emolument from the discharge of their very reason. "The court repelled their defences." Jan. 10, 1709. A fimilar decifion was pronounced in the following cafe, which also involved another point, that will come under our notice afterwards, viz. an interference of the different jurifdic tions within the fame territory: The prefbytery of Kirkwall had found a man, of the name of Oliver Turk, guilty of adultery, and appointed him to be cenfured, agreeably to the forms of the church. The man applied to the juftices of peace of the county, who pronounced a judgment, finding that there was no proof of the adultery; but appointing both the man and woman, as guilty of scandalous behaviour, to give fatisfaction after another manner. The minifter brought the justices, by indictment, before the court of jufticiary; who found their "appointing Oliver Turk "to fatisfy church difcipline in an "other manner than was appointed “by the presbytery and kirk-session " of Kirkwall, and sending to protest against the minister for not receiv. ing the delinquent, relevant to infer an arbitrary punishment." 1712, Auguft. The prefbytery of Kirkwall, on a reference, had fentenced William Stainfgirth and Katharine Brown, his fpouse, to ftand in fackcloth, in their parish church of Birfay, as guilty of the crime of forcery. They gave in a complaint to the juftices, stating, that this procedure was occafioned by their parish minifter, who was one of the reverend presbytery, and had purfued them with unrelenting malice ever fince he had ftole a sheep from them. The fact turned out to be, that the minister had poinded the sheep in confequence of an order from the baron-bailie. After a variety of procedure, too long here to recite, the justices inflicted a fine upon the minifter of 40 fhillings, and ordained him to be rebuked or admonifhed. The minifter presented an indictment to the court of jufticiary, against the juftices, for illegal oppreffion, &c. The informations on either fide are learned and elaborate. The juftices chiefly pleaded, that though the fentence might be null, the judge was not punishable, without palpable injustice, or malus animus. The lords found," that there is no "fuch grofs malversation libelled, as "to infer a punishment against the «faid juftices." 1712, 1ft August; reverend Mr. Sands and others against captain James Moodie and others, Only one other cafe shall be mentioned. The baron-bailie of Dunse made an act, that none should wash leather or skins in a certain damhead in that barony, under the penalty of 31. Scots. Some perfons exercifing the business of tanning and dreffing leather, gave in an application to the justices, complaining of this regulation, and craving redrefs. The juftices ordained the baron-bailie to give in answers; and alfo that the damhead, in the meanwhile, fhould be used as formerly. The complainers took the benefit of this permiffion. The baron-bailie, offended at their disobeying his prohi bition, imposed a fine upon them, and imprisoned them till payment. The juftices, taking offence at this, as an infult to their authority, ordained the various and important duties, are entitled to great indulgence and protection. THEY are not liable in damages, ftill lefs in punishment, although they act illegally, unless they also act corruptly. $15. JUSTICES, THIS rule may perhaps apply to justices also when acting Lenity and indulgence minifterially. At least the error to be punishable, or a ground hewn to of awarding damages, must be grofs and palpable. There them. are cafes, however, where no integrity of intention can excufe a deviation from the letter of the law. The perfonal liberty of the subject is carefully protected; and illegal, or informal, attacks upon it, feldom escape with impunity. If a magiftrate incarcerates a person, without obferving all the requifites of the act 1701, bona fides will not, in general, fave him, as guilty of wrongous imprisonment, from being subjected in damages. WHEN justices, again, are acting as a court in the exercise of their judicial powers, it must be a very strong case indeed, with flagrant proof of their having acted from corrupt motives, that will make them perfonally liable. But "where "the iniquity and partiality of an inferior judge, or clerk, " is very grofs and palpable, fo that it looks like dolus, or "lata culpa, the court of feffion," fays Lord Fountainhall, complainers to be fet at liberty. The libel bore," whereas all unwarrant- «ftituted in favour of any private per- |